In defense of the High Court.

I was struck by the vitriol thrown towards the High Court in the past month concerning the High Court judges’ decision that the Government would have to gain Parliamentary approval to trigger article 50. So struck, in fact, that I started this blog. Democracy, especially one as open to a powerful government as Britain’s, relies on a politically interested and competent public. If the public is misled, democracy suffers most of all. And this front page, from the 4th November Daily Mail, is a clear example of this.

Image result for high court brexit front page daily mail

Criticising a judicial ruling is perfectly reasonable, and sometimes we do find some rulings just baffling. As anyone familiar with divorce cases might be aware, the settlement in the most acrimonious case is rarely satisfying to either side, or fair. But all the same, judges operate on the basis of common sense whenever possible, and make sensible rulings. The latest example of this is the victory, in both the magistrates (local) and High Court, of a father who refused to pay a fine for taking his daughter on holiday during term time. Clearly, the judges acted sensibly (and in accordance with the law) when they rejected this lawsuit against the father.

However, labeling three judges as “enemies of the people” – effectively calling them traitors; using the same language as someone inciting a pogrom in Tsarist Russia – is not only beyond decency, especially for a national newspaper, but an absurd assessment of their decision. Therefore, I’d like to explain why the judges made the right decision.

Firstly, an explanation of the actual ruling must be given, and why it was not only right from a legal perspective, but for the good of the country as well. The decision turned on whether the government could trigger “article 50”, the mechanism to leave the EU, without consulting Parliament. The government argued, as it was effectively a foreign policy decision, which is part of the government’s responsibilities (“the royal prerogative”), they could trigger it whenever they like. The argument against the government is that Parliament passed a bill to take us into the EU, and so only Parliament could repeal that bill. This is the idea of “parliamentary sovereignty”, that Parliament is the highest law-making body in the country, so it can legislate what it likes on any matter.  A nineteenth century political theorist called de Lolme summarised it pithily as: “parliament can do everything but make a woman a man and a man a woman” – though nowadays, even that’s been assimilated into Parliament’s remit.

This concept, which no doubt you heard bandied around by pro-Leave campaigners in various forms as a key argument in their arsenal, “to maintain our national sovereignty”, “to preserve Parliament”, “to be a responsive democracy”. All of these revolved around the concept of Parliamentary sovereignty. Now that we know what Parliamentary sovereignty is, its importance can be fully realised: It’s integral to how British democracy, built from centuries of experience and comprimise, functions; it is a both a key check on governmental power, and one of the most important ways that the government can get things done.

Yet this judgement would seek to overturn the very institution that we voted to protect on June 23rd! By allowing the government to repeal an act of Parliament without a vote – bypassing Parliament, our representatives, altogether – would be a travesty for our democracy. For a judge, when making a decision, must think beyond the case at hand and consider the implications of their judgement. “What could happen if the government can bypass Parliament because of foreign policy demands?”. No doubt already in your minds, any idea of limiting the government’s power to declare war, as many have demanded since the Iraq War, goes out the window. Yet even this as yet unrealised aspiration pales when compared with the implications that this could have. The government could, were the case to be declared in favour of the government in the Supreme Court, and should it so desire, repeal any act of Parliament by justifying it as a foreign policy concern.

The implications of this would be staggering. A vote to return power to the people, too long starved of political responsibility, could instead be cruelly snatched away once more, to an even more closed elite group. A government could sign a treaty, maybe to placate some Russian or oligarchic, interests, that limited the investigatory powers of the police to probe for tax fraud. Billions of pounds of billionaires wealth would be hidden away, foisting yet more burden on the taxpayer whilst they shoulder no responsibility.  Anything our Parliament had written could be conceivably ignored and bypassed, by reference to this ruling. A similar scenario could be imagined in regard to any legislation – human rights, trade unions, drugs and smoking, free speech…

Perhaps this is a tad hyperbolic – the present government neither is contesting this case to obtain these powers (instead using it as a way to garner sympathy with the gutter press and hard Brexiteers, two largely separate groups), nor does it seem poised to want to utilise them should they get them. Yet when making a political decision of this magnitude of importance, that potentially could “subvert our democracy”, as these papers take ironic pleasures in arguing, the judges of the Supreme Court are being incredibly prudent, sensible, and legally correct to follow the letter of the law – Parliamentary sovereignty – and common sense in preserving it.

Yet some fear a stitch-up, that its just a legal ploy to delay and ultimately stop Britain’s departure from the EU. Therefore, a further key point must be that the decision that the judges made was not contrary to the result of the EU Referendum. These judges are not trying to oppose the unquestionable outcome of this June’s referendum. The argument that critics of these judges have made is based on the idea that, by stopping the government from triggering “Article 50” by itself, and giving it to Parliament instead, the judges have tried to block Britain’s exit of the EU. This fear is based on the fact that most MPs (around 2/3) campaigned for the “IN” campaign in the run-up to the referendum, and that, therefore, they will stick to their pre-referendum positions and vote against Brexit.

MPs will not, as a whole, vote against Britain leaving the EU. Firstly because it would infantile and arrogant were they to ignore what Brits declared in June (and, despite claims to the contrary, probably would give the same result if rerun tomorrow), despite their personal views. Secondly, most MPs do listen to their constituents and the public more broadly, as examples like Jo Cox show. Thirdly, for the cynics, it would be political suicide for every politician (save the Nationalists) if they were the one who blocked Brexit indefinitely this way. Nothing would do more than this to polarise our politics and alienate further British citizens. And for all these reasons, MPs will not vote against Brexit. Individuals may: One can easily imagine the SNP, and some Cambridge or London MPs – ie. from strongly pro-EU (70%+) constituencies – voting against Brexit, but this is a minority of MPs; and they would be quite reasonably fulfilling their functions as representative to their own constituents. The government not only commands a majority in Parliament that they could use to coerce the majority of their MPs to stick to Brexit (not that I reckon that this would be needed), and the opposition Labour Party is certainly in no position to organise  a stand against the government on this issue (nor any will, given Corbyn’s personal opinion of Brexit).

This ruling is not a roadblock on the path to Brexit, and in fact can improve it. By mandating that Parliament must be consulted, Parliament can fulfill its most important role, to scrutinise the government’s actions and bills. By forcing a proper debate in Parliament, our MPs can make sure that the Brexit that does happen will be far fairer to the entire country. The interests of every community, industry, and constituency can at least be recognised, instead of being ignored, as the government would seem to prefer. There are several parts of the EU which it would be a good idea to keep close ties with – a common drugs policy for biomedical research and access for certain industries into the EU market stand out – which currently the government seems unwilling to consider. Though this could prolong the time until we do leave, surely it is better to get the best deal possible, that will define our relationship with Europe for decades to come? To fluff it up for our children for, maybe, a 4 month quicker Brexit would be the height of stupidity.

We voted to protect our national sovereignty – let’s not allow the government to steal it from us before we’ve even left the EU. What was the rallying cry for those on the Leave campaign should, and still could, be the banner to which we flock: for the defence of our democracy, our Parliament’s place in it, and our own. By giving Parliament the power to challenge and work with the government on the most important issue of the millennium so far, we can strengthen our democracy, and make sure that the Brexit that we emerge with is as good as can possibly be, for more than just the elite.


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